Publié le 20/06/2026

French labour law Dismissal – French Supreme Court Refuses to Recognize the Employee's Right to Silence During the Preliminary Dismissal Interview (cass. Soc. May 13rd, 26, 25-11.250)

Article juridique - Droit du travail

In a landmark ruling (May 13, 2026, No. 25-11.250), the French Supreme Court refused to recognize the employee's right to remain silent during the preliminary dismissal interview.

I. FACTS

An employee was suspended as a precautionary measure and then summoned to a preliminary interview before being dismissed for serious misconduct.

She challenged her dismissal before the labor court.

The employer association appealed the labor court's judgment, which had ruled the dismissal to be without just cause. The Versailles Court of Appeal upheld the lower court's judgment only insofar as it dismissed the employee's claim for damages for procedural irregularities in the dismissal process, and reversed the judgment in all other respects.

The employee appealed to the Court of Cassation, requesting that the Constitutional Council be asked to rule on a priority preliminary ruling on constitutionality concerning the conformity of Articles L.1332-2 and L.1232-3 of the French Labor Code with the Constitution.

In a judgment dated June 20, 2025 (No. 25-11.250), the Court of Cassation held that the priority preliminary ruling on constitutionality should be referred to the Constitutional Council, as the provisions of Articles L.1332-2 and L.1232-3 of the French Labor Code were applicable to the dispute, their constitutionality had never been examined before, and the question was not without merit.

In a priority preliminary ruling on constitutionality (QPC) dated September 19, 2025 (no. 2025-1160), the Constitutional Council declared Articles L.1332-2 and L.1232-3 of the French Labor Code to be in conformity with the Constitution.

II. GROUND OF APPEAL

The employee challenges the Court of Appeal's judgment finding her dismissal justified for serious misconduct, arguing that the application of a disciplinary procedure that does not guarantee the right to remain silent violates Article 6 of the European Convention on Human Rights (ECHR) and Article 48 of the Charter of Fundamental Rights.

III. DECISION

The Court of Cassation dismissed the appeal and ruled that the provisions invoked (Articles L.1232-3 and L.1332-2 of the French Labor Code) do not impose on the employer an obligation to inform the employee of their right to remain silent during the preliminary dismissal interview.

The Court of Cassation noted that the provisions in question had been deemed constitutional by the Constitutional Council, which was ruling on a priority preliminary ruling on constitutionality (QPC).

The Court of Cassation also specified that Article 6(1) of the European Convention on Human Rights (ECHR) and Article 48 of the Charter of Fundamental Rights enshrine the right to remain silent for individuals who are liable to be subject to criminal penalties or administrative sanctions of a criminal nature.

However, the Court of Cassation ruled that "Neither the dismissal of an employee for personal reasons, nor the sanction imposed by the employer within the framework of an employment contract, constitutes a sanction of a punitive nature within the meaning of the aforementioned texts; therefore, the argument, without merit in its first two parts, is unfounded for the remainder."

IV. ANALYSIS

In decision 2025/1160 1161 1162 of the Constitutional Council of September 19, 2025, the Constitutional Council affirmed that an employee does not have to be informed of their right to remain silent during a dismissal interview or disciplinary proceedings.

The Constitutional Council reiterated that during the dismissal interview, the employer hears the employee's explanations.

It noted that dismissal does not fall under the exercise of public authority prerogatives.

He added that the purpose of dismissal is to draw consequences for the employment contract and the conditions of its execution by the parties.

The Constitutional Council affirmed that a dismissal or disciplinary sanction is not a sanction having the character of a punishment within the meaning of Article 9 of the Declaration of 1789.

Therefore, the legislation on dismissal does not disregard the requirements of the article of the Declaration of 1789.

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The preliminary meeting thus remains an opportunity for the employer to present the grievances against the employee, while the latter can provide any necessary explanation regarding the situation.

This is the meaning of the phrase "gathers the employee's explanations," which opens the way to discussion between the employee who is being considered for sanction and the employer, while also guaranteeing respect for the rules of due process.

In practice, if the employee categorically refuses to provide any explanation, preferring to remain silent, the employer cannot compel them to do so. Employees will therefore not be able to invoke their right to remain silent during a preliminary interview, nor contest the legality of their dismissal by claiming the employer had an obligation to inform them of their right to remain silent.

However, nothing in the law prohibits them from remaining silent, but employees should bear in mind that, if necessary, the employer retains the right to impose sanctions regardless.

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